In California criminal cases, a Romero motion is where you ask the judge to remove a prior strike conviction in furtherance of justice so that it does not get used against you at sentencing. This way, you avoid a “Three Strikes and You’re Out” mandatory state prison sentence of 25 years-to-life.
Here are three key things to know:
- You can file a Romero motion at any time in a criminal case.
- If the court grants your Romero motion, it can significantly reduce your prison sentence.
- Strikes that judges dismiss per Romero still remain on your criminal record and background checks.1
Here at Shouse Law Group, we have represented countless people facing life in prison for a third strike. In our experience, emphasizing how our clients are good people who are not the type of career criminals the Three Strikes Law was meant to target goes a long way in persuading courts to dismiss past strikes and minimize any potential sentence.
In this article, we discuss:
- 1. What is a “Romero motion”?
- 2. What factors do judges consider in Romero motions?
- 3. Do dismissed strikes disappear?
- Additional resources
In California, a Romero motion is where you request that the court dismiss a prior strike conviction. If the judge grants it, this removed strike will not increase your sentence in your present criminal case like it normally would under California’s Three Strikes Law.
You can bring a Romero motion at any point in a criminal case up to and including the sentencing hearing.
Jesus Romero was convicted of possessing 0.13 grams of cocaine base, which normally carries three years in prison. However, he faced life in prison under Three Strikes because of his past convictions for burglary and attempted burglary.
The trial judge in the case:
- took a look at the whole situation and
- decided that Romero did not deserve to go to prison for life.
Judges have the discretion under California Penal Code Section 1385 to dismiss actions “in furtherance of justice.”2 Therefore, Romero’s judge “struck” one of the burglary convictions and sentenced Romero to only six years.3
In considering whether to grant a Romero motion by removing one or more of your strikes, the judge must reasonably consider both:
- your right to be free from cruel and unusual punishment and
- the interest of society to have prosecutors pursue cases against alleged criminals under the law.
In addition, the judge should take into account:
- the nature and seriousness of the current offense,
- your past “strikes,”
- how granting the motion would affect public safety, and
- your character, prospects, and background.
Meanwhile, judges should not dismiss a strike allegation merely because:
- it would relieve court congestion and be convenient judicially, or
- you took a guilty plea (as opposed to the court finding you guilty at trial) in the hopes of getting a lesser sentence.4
No. When a judge dismisses one of your strikes, it does not disappear from your record. The court simply removes the strike for the purpose of sentencing you for the current conviction.
Example: Denny is convicted of felony Penal Code 487 grand theft. He also has two past strikes – a nonviolent burglary of a home and assault with a deadly weapon – and therefore faces life in prison under the Three Strikes Law.
In response to a Romero motion, the trial judge dismisses the past burglary allegation and sentences Denny as if his case was a second strike case. However, the burglary conviction remains on Denny’s record and can come back to haunt him if he gets into trouble again.
When a trial judge decides to dismiss a strike allegation, the judge must enter the reason for the dismissal in the “minutes” of the court proceeding. This means that the judge must state their reasons in open court so that the court reporter can record those reasons in the transcript.
Therefore in the event of an appeal, the higher court will:
- know the reasons for the lower court’s decision and
- can therefore assess whether it abused its discretion.5
For more in-depth information, refer to these scholarly articles:
- Striking out: The Failure of California’s Three Strikes and You’re out Law – Stanford Law & Policy Review.
- California’s Three Strikes Law: History, Expectations, Consequences – McGeorge Law Review.
- “Three Strikes and You’re Out”: The Impact of California’s New Mandatory Sentencing Law on Serious Crime Rates – Crime & Delinquency.
- The effect of three-strikes legislation on serious crime in California – Journal of Criminal Justice.
- Does Three Strikes Really Deter? A Statistical Analysis Of Its Impact On Crime Rates In California – College Teaching Methods & Styles Journal.
- California Penal Code 667 PC. Proposition 184.
- See PC 1385 (“The judge or magistrate may, either on motion of the court, in furtherance of justice, order an action to be dismissed which shall be stated orally on the record. The court shall list the reasons in an order entered upon the minutes if requested or if the proceedings are not recorded electronically or by a court reporter. A dismissal will not be made for any cause that would be ground of demurrer to the accusatory pleading.”).
- People v. Romero (1996) 13 Cal.4th 497. The court still enhanced Romero’s sentence by three years over the upper term for possession. This is because of three prior prison sentences. The prosecution appealed the case. Though the California Supreme Court agreed that the trial judge acted within its power in striking the strike allegations. However, the high court emphasized that this power is finite. Indeed, it exists within certain parameters so as not to constitute an improper abuse of discretion. See also People v. Avila ( People v. Salazar (.
- Same. People v. Williams (1998) 17 Cal.4th 148. Along with Romero, Williams set forth the parameters within which trial court judges must exercise their Section 1385 power. Although the trial judge in Williams’ case dismissed one of his strike allegations, the California Supreme Court reversed the judge’s decision. The high court noted that Williams was the kind of defendant who did, in fact, fall within the spirit of the three-strikes law given his lengthy criminal history that included rape, attempted robbery, possession of a firearm by a felon and numerous convictions for DUI.
- People v. Garcia (1990) 20 Cal.4th 490.